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SCOTUS v Democracy?

Updated: Jul 6, 2022

Everyone is in hysteria over the recent wave of Supreme Court decisions. Suddenly, we are all talking about this archaic institution.

Besides specific issues, people are upset the Court is destroying democracy. And this is particularly frightening right now, when democracy is already on its last legs because of misinformation and January 6th.

For those of you fretting about such things, I have really good news!

All of that is crap.

But, before we get the manure shovel, let's start at the beginning. Hold on, because for some of you, this next part may be triggering. But, I promise that if you put on your big-juvenile-cis-female panties, you'll get through it and there will be light at the end.

The United States of America is not a democracy. It never was (and hopefully never will be).

Breathe. It'll be ok. I promise.

What we are is a beautifully-crafted Constitutional Republic.

That Republic relies on several democratic mechanisms, but it is not, at all, a pure democracy. A primary reason it was set up that way was to protect the rights of those in the minority from the mob rule of the majority. The majority can get carried away, and it can be (and has been) wrong. Also, the founders intentionally wanted changes to move slowly, so emotional over-reactions could cool and solutions could be carefully considered.

Having said that, we hold democracy in very high esteem. It is the cornerstone of our form of government and the piece that keeps the government accountable and (theoretically) subservient to the People.

And, here's the good news!

The Supreme Court dramatically reinvigorated democracy this last month!

"Say what?!"

Bear with me. Thought experiment:

Imagine a Supreme Court made up of 6 Justices nominated by Republican presidents and only 3 nominated by Democrats. Abortion comes before the Court. The majority decides to abruptly overturn the expressed and documented will of the majority of Americans on this very sensitive topic. One of the Republicans writes the majority opinion, leaving one of the Democrats to write a dissent, angry and frustrated with this disregard for constitutional rights and exercise of raw judicial power. The decision sparks outrage across the country.

"Wait, I don't have to imagine that. It happened in real life!"

Yes, it did. The year was 1973, and the case was Roe v. Wade.

In that decision, The Supreme Court pretended the US Constitution said something it never said. Seven old white men wanted there to be legal abortion. So, even though it was not their right to make that decision, they unilaterally decided what our abortion law should be, upending laws that had been put in place in all 50 states by legislatures elected by, and accountable to, the democratic process (us).

What the Supreme Court did in Roe was both unconstitutional and undemocratic.

Even if you are stridently pro-abortion, you should want "abortion rights" sitting on a valid foundation, not a flimsy lie. The notion that the right to an abortion is in the US Constitution has always been just that.* This is your chance to firmly codify pre-born baby killing in actual law. Unfortunately, you will probably be successful, certainly in a lot of states.

But, here is the point for this discussion:

In the Dobbs decision, the Court was not saying, "a majority of us want abortion outlawed, so it is now outlawed." What they said was, "we cannot pretend the Constitution says something it does not say, because that would be usurping power we don't have and undermining the nation's democratic institutions."

So, the Dobbs decision is not anti-abortion, it is anti-judicial imperialism. All of us should be happy about that, especially those who like to preach about "Democracy!"

The Dobbs Prequels and Sequels

We need to look at this term's other decisions through the same lens.** When you do that, you get a completely different view of what happened. Instead of swallowing the Leftist narrative that says, "this radically conservative Supreme Court is anti-abortion, anti-environment, pro-guns and pro-religion," you quickly realize the truth:

The Court is (unlike most Washington institutions) staying in its lane and protecting the Constitution and our form of government.

So, SCOTUS is not necessarily anti-abortion or anti-environment. Rather, in both cases, it is pro-democracy. As discussed, on the "abortion" case it is supporting the democratically-elected state legislatures by (appropriately) limiting its own power. In the "environment" case it is supporting our democratically-elected Congress over the capricious tyranny of unelected bureaucrats (in this case, the EPA).

On the other hand, the decisions where the Court appeared to be "pro" something could have also been easily predicted. Why? Because those were things specifically listed and protected in the US Constitution. "Pro-religion?" Read the First Amendment. "Pro-Guns?" Read the Second Amendment. Bill Belichick would be proud - the Court did its job.

All of us - even pro-choice, anti-gun, atheistic, climate-catastrophe worrywarts - owe a great deal of thanks to the current Supreme Court for its restoration and support of the US Constitution and our democratic institutions.

* As an aside, here is the text of the relevant portion of the 14th Amendment:

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. [emphasis added]."

A plain reading of that (especially when coupled with what we now know about human development) could get you to the conclusion the Constitution does cover abortion - and prohibits it.

** BTW, this "lens" is not a made-up theory. This is what the opinions actually provide as their rationale. Similarly, Justice Thomas' concurrence in Dobbs does not mean he is anti-gay or (laughably) interracial marriage. He simply, but seriously, wants the Supreme Court to stick to a proper reading and application of the Constitution.

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